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Jenkins v. State and County Mutual Fire Insurance Co.

April 19, 2007

GARRY JENKINS APPELLANT
v.
STATE AND COUNTY MUTUAL FIRE INSURANCE COMPANY APPELLEE



FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY.

The opinion of the court was delivered by: Dixon W. Holman Justice

MEMORANDUM OPINION*fn1

In two points, appellant Garry Jenkins seeks a reversal of the trial court's order granting summary judgment against him. In his second point, he complains that the trial court erred by granting summary judgment against him because there was a genuine issue of material fact as to the coverage of the insurance policy at issue. We agree. We reverse the trial court's summary judgment order and remand the case to the trial court.

BACKGROUND

In 1997, Appellant's foot was crushed when he and Mark Lemmon, hired as independent contractors, moved oilfield equipment for L & G Pipe. Mark drove the truck ("truck")*fn2 that was covered by the automobile insurance policy ("policy") issued by Appellee to Deborah Grisamer.*fn3 When Mark abruptly stopped the truck, the 2,000 pound tank skid he carried on the truck's winch dropped on Appellant's foot. Appellant sued Mark, individually and d/b/a M & T Trucking, L & G Pipe, and L & G Pipe's owners, Deborah Grisamer and her husband, Richard Lemmon. Mark is Richard's brother.

Appellant obtained a default judgment against Mark, individually and d/b/a/ M & T Trucking in July 2002, for $650,000 in actual damages and $260,000 in prejudgment interest, when Mark failed to answer. In a severed action in May 2003 ("prior suit"), the jury found no liability for L & G Pipe, Deborah, or Richard; it placed full liability on Mark.

In 2005, Appellant filed this suit, claiming that Mark was a covered driver under the policy. In its motion for summary judgment, Appellee argued in a single ground that although the policy listed the truck as a "covered auto," Mark did not qualify as an "insured" under the policy's terms, so, as a matter of law, the policy afforded no coverage for Appellant's default judgment claim against Mark. The policy terms at issue are found in Section II, Liability Coverage:

A. COVERAGE

will pay all sums an insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto. . . . [W]e have no duty to defend suits for bodily injury or property damage not covered by this Coverage Form. . . .*fn4

1. WHO IS AN INSURED: The following are insureds:

a. You for any covered auto. [The policy defines "you" and "your" as referring to the Named Insured, in this case, Deborah]

b. Anyone else while using with your permission a covered auto you own, hire or borrow . . . .*fn5

Appellee asserted that it was entitled to summary judgment because the truck was owned by Mark, and was not owned, hired, or borrowed by Deborah, the named insured; therefore, Mark was not an "insured" under the policy's terms. Appellee submitted as summary judgment evidence certified excerpts from the trial of the prior suit, a certified copy of the truck's title and registration records listing Mark as the truck's owner, a copy of the default judgment rendered against Mark, a certified copy of the policy, and a copy of the final judgment rendered on the ...


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